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Reasons and decision
Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division dated November 19, 2015, which determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan, as it found that her disability was not “severe” by the end of her minimum qualifying period on December 31, 2014. The Applicant filed an application requesting leave to appeal on February 8, 2016, invoking several grounds of appeal.
Issues
[2] Does the appeal have a reasonable chance of success?
Analysis
[3] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) sets out the grounds of appeal as being limited to the following:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[4] Before granting leave, I need to be satisfied that the reasons for appeal fall within the enumerated grounds of appeal under subsection 58(1) of the DESDA and that the appeal has a reasonable chance of success. The Federal Court endorsed this approach in Tracey v. Canada (Attorney General), 2015 FC 1300.
i. Natural justice
[5] Natural justice is concerned with ensuring that an appellant has a fair and reasonable opportunity to present his or her case, that he or she has a fair hearing, and that the decision rendered is free of any bias or the reasonable apprehension or appearance of bias. The Applicant argues that she was denied the right to fairly present her case, as the General Division proceeded to render a decision without awaiting the release and production of the family physician’s medical documentation. The Respondent apparently had requested and obtained medical documentation from the family physician, but the Applicant had not received a copy of it, either from the family physician or the Respondent, prior to the hearing before the General Division on October 5, 2015.
[6] As a preliminary matter, the General Division member addressed the issue of the production of the family physician’s records. The member wrote:
[9] At the commencement of the hearing, the Tribunal Member advised the Appellant and her Representative that he was not inclined to grant an adjournment in the circumstances. The usefulness of the document was purely speculative and the Appellant had ample opportunity to request and/or file any supportive documentation from her family physician prior to the hearing. As the Appellant’s right to a fair hearing was not compromised and was accordingly outweighed by the duty to hold a hearing in a timely manner, the Tribunal proceeded with the hearing.
[7] After the hearing, the member learned or was led to believe that the Respondent had in fact filed a copy of the family physician’s medical records with the Social Security Tribunal (Tribunal), although it was unable to locate a copy. On October 7, 2015, the member wrote to the Applicant’s representative, advising that he was prepared to “briefly defer the decision in order to allow time for the [Applicant’s] Representative to locate and submit the August 26, 2015 letter of [the family physician]”. The member directed that the Applicant’s representative file the family physician’s letter by November 6, 2015, and if it were filed, both parties would have until November 20, 2015 to make submissions on the contents of that letter (GD9).
[8] On October 22, 2016, the Applicant’s representative e-mailed the Tribunal, advising that she had been in contact with the medical adjudicator at Service Canada regarding the family physician’s medical documentation and was informed that the medical adjudicator was in the process of determining how to submit the medical information to the Tribunal (GD10).
[9] On October 24, 2016, the Applicant’s representative sent a further e-mail to the Tribunal, advising that she had been informed that the Respondent had sent her file, along with the family physician’s medical records, to its regional office. She also understood that the Respondent was unprepared to release copies of the family physician’s medical records to either the Applicant or to the Tribunal. When she requested that the information be sent to the Tribunal, the response that she received was that the Respondent was not responsible for furnishing this information and that she should make an access to information request or obtain the records directly from the family physician. It was at this point that the Applicant sought directions on how to proceed. She also requested the Tribunal to request this information from the Respondent, as this would expedite production of the document (GD11-1).
[10] The member declined issuing an order that the Respondent produce a copy of the medical report. Instead, the member offered the possibility of an extension, if the Applicant’s representative made a request for one by November 6, 2015, along with an estimate of how much time would be reasonably required to obtain the documents. The member made the offer in the Tribunal’s letter dated October 27, 2015. As the Tribunal did not receive a response from the Applicant’s representative by November 6, 2015, the member proceeded with his decision.
[11] The Applicant argues that by proceeding in this manner, the General Division failed to observe a principle of natural justice. The Applicant also claims that the member’s deadline by which to make a request for an extension was too short. The Applicant’s representative indicates that she travels for work and by the time she returned to the office and reviewed the Tribunal’s letter, the deadline had already passed (AD1- 26). She did not seek to respond to the Tribunal’s letter of October 27, 2015, as she believed it would be futile. In hindsight, she should have communicated with the Tribunal, even if the deadline had passed.
[12] I concur with the General Division’s restatement of the law that an appellant bears the onus of proof to prove her claim or entitlement to a disability pension. This generally requires an appellant to produce documentary evidence in a timely manner and to adduce the appropriate oral testimony. However, the circumstances of this case are somewhat unique, in that the Respondent had purportedly filed a copy of the Applicant’s medical records with the Tribunal. Normally, the Tribunal would then provide the Applicant with a copy of the records. As the Tribunal did not receive or was unable to locate a copy of the records, it obviously could not have provided the Applicant with a copy. Having become aware that the Respondent had obtained some medical records from the Applicant’s family physician, the Applicant relied on production from the Respondent rather than requesting them from the family physician, as this would have otherwise resulted in costs to her.
[13] Subsection 26(f) of the Social Security Tribunal Regulations (Regulations) requires the Respondent, within 20 days after the day on which the Respondent receives a copy of an appeal, to file a copy of the reconsideration, rescission or amendment decision that was made, along with any documents relevant to the decision.
[14] One interpretation of the subsection suggests that documents are not relevant to the Respondent’s reconsideration decision, if the Respondent does not already have copies of them at that time. In this case, the Respondent only obtained a copy of the family physician’s records well after it had made its reconsideration decision. Based on this interpretation, the family physician’s records therefore could not have been relevant to its reconsideration decision as it had already been made. In any event, the Respondent did not have a copy of the family physician’s records to be able to produce them within the 20-day timeframe.
[15] On the other hand, whereas subsection 30(b) of the Regulations stipulates that the Commission file documents in its possession that are relevant to the decision being appealed, subsection 26(f) of the Regulations does not delineate between whether relevant documents are in the Respondent’s possession or not. This would seem to suggest that the Respondent is required to produce all relevant documents, irrespective of whether they are in its possession (and control). However, the Respondent has no control over when and whether it can even obtain all relevant documents, given that they reside with independent third party sources. This interpretation is onerous, at best, and likely impractical. Practically, at most, subsection 26(f) can only require the Respondent to produce copies of relevant documents within its possession and control. The subsection however falls short of requiring ongoing disclosure by the Respondent.
[16] One of the overriding issues is the extent of ongoing disclosure required by each of the parties, particularly when one of the parties would necessarily have provided an authorization for the release of records and those records relate to that party. It is in the interests of justice that there be full and timely disclosure of relevant documents, subject to any claims for privilege, particularly to enable the parties to advance their case or to know the case they are required to meet, and ultimately to enable a decision-maker to make a fully informed decision.
[17] Against that backdrop, having been made aware that the Respondent had medical records in its possession and control which the Applicant had yet to receive and upon which she likely intended to rely, and the Applicant’s position as set out in a series of e-mail, I am satisfied that there is an arguable case that the Applicant may have been deprived of a reasonable and fair opportunity to present her case.
[18] The General Division declined to order production of the records, on the basis that it had no authority to compel a party to produce documents. It may be that section 4 of the Regulations confers some authority on members to order production of records and, if so, the General Division’s statement could constitute an error of law and could represent a failure to exercise its discretion.
[19] With these considerations, I am satisfied that the appeal has a reasonable chance of success.
ii. Substantially gainful occupation
[20] The Applicant submits that the General Division erred in concluding that, if she was able to provide some child care and earn between $40 and $60 per week, she was necessarily engaged in a substantially gainful occupation. The Applicant notes that, at paragraph 54, the member found that the Applicant was making a regular time commitment and demonstrated some capacity, “given the potentially serious consequences if she were to neglect her child or the other children who were entrusted to her”. The Applicant submits that the member failed to consider whether this time commitment of two hours per day, five days per week actually constitutes a substantially gainful occupation.
[21] In fact, the General Division wrote that the after-school care on a daily basis was “not akin to substantially gainful occupation”, though it found that it established a minimum level of predictability and reliability (paragraph 59). Given this, I am not satisfied that the appeal has a reasonable chance of success on this ground.
iii. Minimum qualifying period
[22] The member indicated that without any evidence that the Applicant was eligible for the Canada Child Tax Benefit in respect of a child born on X X, X, he could not apply the child rearing provisions nor adjust the minimum qualifying period accordingly.
[23] The Applicant submits that the General Division erred in failing to determine whether the child-rearing dropout (CRDO) provisions were applicable with respect to the child born in 2013, as it could have had a material effect on the outcome of the proceedings.
[24] The primary caregiver of a child is the person who spends the most time caring for the daily needs of the child, and the primary caregiver of a child is generally considered eligible for the Canada Child Tax Benefit. The Applicant had applied for the child rearing provision in respect of her first two children, born in November 2002 and October 2005. The Applicant indicated that she had been the primary caregiver for both children from birth to age seven. She also indicated that she had received the Canada Child Tax Benefit in respect of both children (GD2-20 to GD2-21). The General Division noted that the Applicant lives with her partner and three children and that she takes care of her children. At paragraph 57, the General Division also found that the Applicant is the primary caregiver for her children, “one of whom is always with her at home”.
[25] In Miceli-Riggins v. Canada (Attorney General), 2013 FCA 158, the Federal Court of Appeal reviewed the child rearing provisions. Stratas J.A. held that the Canada Pension Plan was designed to eliminate the potentially unfair effects of leaving the workforce to care for a child, by excluding periods to be excluded from the contributory period. He wrote:
The CRDO is designed to ensure that a person who stays home to raise a child under the age of seven is not penalized during that time for having low or no earnings. It protects eligibility for benefits and preserves the level of benefits eventually paid out under the [Canada Pension] Plan. As the dissenting reasons of the Board note, “[t]his feature of the design of the [Plan] plays a vital role in advancing the financial security of women who have their work interrupted by child rearing.
[26] There is a presumption under paragraph 122.6(f) of the Income Tax Act that where a child resides with both parents, the female parent is the primary caregiver and thus the parent eligible to receive the Child Tax Benefit.
[27] It is unclear whether the Applicant filed an application with Employment and Social Development Canada for the child rearing provision in respect of her youngest child, as she had done with her other two children. Had such an application been made, the Respondent would have considered the issue. Without such a determination having been made by the Respondent, the General Division lacked the jurisdiction to decide whether the Applicant was entitled to the child rearing provision in respect of her youngest child.
[28] Given the underlying purposes for which the Canada Pension Plan was designed, and given the evidentiary findings of the General Division, I am satisfied that there is an arguable case that the General Division ought to have ascertained whether the child rearing provisions were available to the Applicant in respect of her third child, as this could have had the effect of extending the minimum qualifying period. In other words, the member could have requested the Respondent to consider the issue and decide whether the child rearing provision applied, and then, based on that decision, determine if the Applicant could benefit from the provision. It would however have been preferable had the Applicant filed an application in the first instance. I am satisfied that the appeal has a reasonable chance of success on this ground.
iv. Objective evidence
[29] The Applicant further argues that the General Division erred when it required objective evidence of her medical condition, when there are no objective findings for fibromyalgia.
[30] At paragraph 52, the member wrote, “While decisions of the Pension Appeals Board are not binding on the Tribunal, the 2000 decision in Walsh v. Minister of Human Resources Development, CP 08755, also notes the difficulty, in the context of chronic pain syndrome or fibromyalgia, of having to rely almost totally on subjective evidence to establish severity”. This suggested that the General Division would consider both objective and subjective evidence of the severity of the Applicant’s disability. At paragraph 58, the member also indicated that it was concerned with the impact of the Applicant’s medical conditions, rather than the fact that a diagnosis existed.
[31] Yet, on the other hand, the General Division equated “objective medical evidence” with “medical documentation”, rather than objective findings or verification of the existence of the condition to support the Applicant’s subjective complaints. The Applicant’s submissions presuppose that the General Division was skeptical of the Applicant’s claims that she suffers from fibromyalgia but, in fact, it appears that the General Division accepted the diagnosis. It was simply unconvinced of the severity of her condition in light of her family physician’s opinion that “fibromyalgia may diminish with age”, and as she had failed to adduce any recent medical records documenting her complaints or her efforts at seeking treatment, particularly after her high-risk pregnancy had long passed.
[32] In this regard, the General Division wrote,
[55] . . . Without any further objective documentation, it also is not clear to what extent Dr. Dodds’ findings on work capacity were informed by the Appellant’s pregnancy. However, his reference to “current physical findings and functional limitations” would have been consistent with a consideration of her pregnancy. The Tribunal also notes Dr. Iqbal’s statement that fibromyalgia may diminish with age. All of these factors lead to the conclusion that the only objective post-employment documentary evidence is of relatively little assistance to the Appellant in establishing severity on or before December 31, 2014 and continuing through to the date of the hearing.
[33] Finally, at paragraph 58, the member wrote, “self-reported symptoms can obviously be considered but should also be supported by objective documentation”.
[34] However, there was relatively little in the way of medical documentation. The General Division referred to the dated medical documentation before it and noted that the most recent report from any health caregiver was the January 6, 2013 report. Given the General Division’s definition of objective evidence in these proceedings, I am not satisfied that the appeal has a reasonable chance of success on this ground.
v. Benevolent employer
[35] The Applicant further argues that the General Division erred in failing to consider that she had a “philanthropic employer – herself”.
[36] The General Division was aware of the Applicant’s self-employment as an after- school caregiver. The member also considered the Applicant’s submissions that her health is unpredictable and by implication, that she therefore lacked the requisite capacity regularly of pursuing any substantially gainful occupation. The Applicant is wrong in her assertion that the General Division failed to consider that she relies on a benevolent employer. It rejected the proposition that the Applicant relies on a benevolent employer. At paragraph 54, the member wrote, “this after-school care clearly requires a regular time commitment and some degree of capacity, given the potentially serious consequences if she were to neglect her child or the other children who were entrusted to her”. I am not satisfied that the appeal has a reasonable chance of success on this ground.
Conclusion
[37] For the reasons cited above, the application for leave to appeal is allowed on the two grounds set out above.
[38] This decision granting leave to appeal does not, in any way, prejudge the result of the appeal on the merits of the case.